United States v. Hernandez

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20949
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AURELIO OLIVARES HERNANDEZ, also known as Nano,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-168-ALL
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges
PER CURIAM:*
Aurelio Olivares Hernandez appeals the sentence
imposed following his guilty-plea conviction for
possession with intent to distribute 500 grams or more
of cocaine. Hernandez argues that the district court’s
consideration of facts that were neither admitted nor
proven to a jury in calculating his guidelines sentence

-- 1 of 3 --

No. 05-20949
-2-
range violated the Sixth Amendment under United States
v. Booker, 543 U.S. 220 (2005). As Hernandez was
sentenced under an advisory guidelines scheme following
the issuance of Booker, this argument is without merit.
See United States v. Johnson, 445 F.3d 793, 798 (5th
Cir.), cert. denied, 126 S. Ct. 2884 (2006).
For the first time on appeal, Hernandez argues that
the district court’s drug quantity determination was
clearly erroneous because it was speculative and not
supported by a preponderance of the evidence. Because
Hernandez did not raise this issue below, we review for
plain error. See United States v. Alvarado-Santilano,
434 F.3d 794, 795 (5th Cir. 2005), cert. denied, 126 S.
Ct. 1812 (2006).
The district court adopted the factual findings and
conclusions set forth in the presentence report (PSR).
The conversion of drug proceeds into their drug
equivalency was proper. See United States v.
Fitzgerald, 89 F.3d 218, 223-24 (5th Cir. 1996);
U.S.S.G. § 2D1.1, comment. (n.12). As the facts set
forth in the PSR showed that Hernandez was involved in
the distribution of kilogram quantities of cocaine in

-- 2 of 3 --

No. 05-20949
-3-
the Houston area, the inference that the drug proceeds
were from that type of transaction was reasonable. See
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.
2006). Because Hernandez did not offer any evidence to
rebut the findings in the PSR, the district court did
not commit error, plain or otherwise, by adopting the
drug quantity determination set forth therein. See
United States v. De Jesus-Batres, 410 F.3d 154, 164
(5th Cir. 2005), cert. denied, 126 S. Ct. 1022 (2006).
AFFIRMED.

-- 3 of 3 --